Editorial: Considering civil forfeiture
The recent revelation by the Permanent Secretary in the Office of the Attorney General, while delivering remarks on behalf of the Honourable Attorney General, that Government was “considering the introduction of civil forfeiture legislation against those who have been reasonably suspected of having gained assets through illegal means” echoes a promise from the former DLP administration.
In August 2013, then Attorney General, Mr Adriel Brathwaite, referencing the recent implementation of an identical law in Dominica, announced that Barbados “was looking at a model law under which assets believed to be the proceeds of crime may be forfeited”, although he acknowledged that “there had been some concern about the constitutionality of civil forfeiture and said it was important to have the right legislative framework in place”.
Notwithstanding this concern, the Integrity in Public Life Bill, currently under public debate, contains a provision that mirrors the concept, although it is somewhat limited in its scope in that it applies to public officials only. According to Clause 57 of that Bill-
Where a person who is or was a public official is suspected to be in possession of property or a pecuniary resource disproportionate to such person’s known sources of income, the Commission, upon a complaint or of its own motion, may summon the person to produce evidence that the property or resource was lawfully obtained.
(2) A person referred to in subsection (1) who fails to produce satisfactory evidence to prove that the possession of the property or pecuniary resource was acquired by lawful means is guilty of an offence and is liable, on summary conviction, to a fine and to imprisonment for not less than 6 months or more than 3 years.
Essentially, civil forfeiture laws allow the state to confiscate cash, cars, homes and other property suspected of being involved in or obtained through criminal activity. Unlike in the case of criminal forfeiture, the property owner doesn’t have to be charged with, let alone convicted of, a crime to permanently lose his property.
As is to be expected, the concept of civil forfeiture does not find ready favour with those whose lifestyle and assets do not reflect their known lawful income and, as the former AG noted, there have been concerns expressed as to its constitutionality.
However, a recent judgement of the Eastern Caribbean Court of Appeal firmly rejected a constitutional challenge to the relevant law in Antigua and Barbuda, thus lending further jurisprudential authority to the concept in the region.
In this case, one Ahmed Williams had previously been convicted of possession of cocaine with intent to sell. At the trial, the Court ruled in accordance with the civil standard of proof, that he had engaged in money laundering activity and that the real property was, on the balance of probabilities, the proceeds of crime.
On appeal, Williams argued that forfeiture under the Act amounted to a finding of criminal guilt in civil proceedings in which he had not been criminally charged. He also argued that civil forfeiture constituted inhumane treatment.
It was held that civil forfeiture is separate and distinct from criminal confiscation. Under the civil forfeiture regime, there is no criminal charge and property may be forfeited if the court is satisfied on the balance of probabilities that a defendant’s property was obtained from money laundering activity. The Court of Appeal held that civil asset recovery is civil in nature. It does not therefore infringe protections under the Constitution concerning the presumption of innocence and double jeopardy.
To the argument that civil forfeiture constituted inhumane treatment, the Court said that it had been long established that the protection under the Constitution from inhuman treatment was a fundamental protection concerned with a person’s protection from bodily impairment and was not related to property rights.